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Federal Judge Beats the Rap by the Skin of His Teeth By Dan Levine SAN FRANCISCO - Judges on a federal discipline panel vindicated Judge Manuel Real on Friday, but they did it through clenched teeth. The Judicial Council of the 9th Circuit dismissed two misconduct complaints accusing Real of failing to state the reasons for his rulings. The complaints had previously led the council to privately reprimand Real. But a U.S. Judicial Conference committee sent the matter back to the circuit earlier this year, with instructions to probe the element of willfulness. The conference required "clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law," a special 9th Circuit committee explained Friday. Real's conduct just didn't meet that standard, it found. Still, the Judicial Council had words for Real. "Judge Real's acts and omissions have resulted in needless appeals and unnecessary cost to litigants in both money and time, and have tended to undermine the public's confidence in the judiciary," it wrote. "The occurrences here are more than anecdotal or occasional." The council concluded: "That such conduct was not found to be 'virtually habitual' or to have occurred in a 'substantial number' of similar cases in no way lessens the importance of and the need to give reasons for a decision when required by law." Real's attorney, Beverly Hills, Calif., solo Stephen Miller, did not return a phone call seeking comment, nor did the complainant, Los Angeles attorney Stephen Yagman. In the same order, remanding these complaints to the 9th Circuit, the U.S. Judicial Conference upheld a public censure against Real for improperly intervening in a bankruptcy case. With Friday's dismissal, Real's public disciplinary troubles are, for the moment, concluded. "The question now, since he has been vindicated to this extent, is, will he take senior [status]?" said Professor Arthur Hellman of the University of Pittsburgh School of Law. Real will turn 85 next month. A special committee, made up of the 9th Circuit's Susan Graber and Richard Clifton and Eastern District of Washington Chief Judge Robert Whaley and California Northern District Judge Ronald Whyte, compiled a 39-page report, detailing dozens of cases where Real did not state reasons for his orders. Chief Judge Alex Kozinski sat on the committee ex officio until June, when a flap over nude photos on an online server led the chief to remove himself from disciplinary matters. Applying the clear and convincing standard for willfulness, the committee found that Supreme Court case law was too vague to justify misconduct for many of Real's cases, especially in the sentencing realm. Other lapses can be attributed to "an attitude that can best be characterized as inattentive or negligently indifferent" to the legal standard. "However erroneous and lamentable this failure of responsibility may be, it does not warrant a finding of misconduct," the committee wrote. Lately, Real has been better about stating his reasoning -- though the committee acknowledged six cases since the current complaint was filed in which an appellate court chastised Real and removed him from the matter. "None of these cases involved a failure to state reasons and thus was not deemed appropriate for consideration in this pattern and practice investigation," it wrote. Hellman said the committee should be recognized for preparing a thorough report, adding that the dismissal was practically preordained once the conference issued its high standard. And Real has now been put on notice. "I think further behavior of this kind could more easily be found willful," Hellman said.
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A Feast
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